Due Process White Paper

AAEM WHITE PAPER ON DUE PROCESS RIGHTS FOR PHYSICIANS

Larry D. Weiss, MD, JD, FAAEM
Professor of Emergency Medicine
University of Maryland School of Medicine

Approved with revisions by the American Academy of Emergency Medicine Board of Directors, May 15, 2007

INTRODUCTION
The American Academy of Emergency Medicine (hereinafter AAEM) declares the inviolability of physician due process rights. Unfortunately, some hospitals and contract management organizations attempt to deny physicians their due process rights. This widespread practice threatens physician autonomy. Emergency physicians, as well as all other physicians, require autonomy so they may advocate for their patients and practice free of corporate influence. The threat of termination from a hospital medical staff, without the right of a fair hearing, would prevent most physicians from advocating for their patients in an adversarial manner. Therefore, contractual clauses that strip physicians of their due process rights are null and void, because such clauses (1) violate the constitutional rights of physicians, (2) violate public policy, (3) violate the Health Care Quality Improvement Act of 1986, (4) violate protections afforded in medical staff bylaws, and (5) conflict with standards promulgated by the Joint Commission.1

SOURCES OF DUE PROCESS RIGHTSU.S. Constitution. The due process clause of the Fourteenth Amendment of the U.S. Constitution states “ . . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”2 The U.S. Supreme Court defined due process rights by the procedures available when government deprives the individual of a right. Under the rule of Mathews v. Eldridge, the amount of procedural protection depends on a flexible balance between the interests of government and those of the individual.3 A hearing takes place prior to deprivation of that right when the contested right involves “property interests” of the individual. Courts refer to tangible and intangible possessions as “property rights” if they have a real value. Finally, the Mathews Court held that courts should look at the risk of an erroneous deprivation of the individual’s right when reviewing the facts of a case.

In Darlak v. Bobear, 814 F.2d 1055 (5th Cir. 1987), a case that directly applied the rule of Mathews to the medical setting, the court applied the flexible balancing rule to conclude that an informal hearing satisfied the due process rights of a temporarily suspended physician, and a formal hearing before the hospital credentials committee satisfied the physician’s hearing rights prior to a final suspension.4 The court also stated that physicians have a “property interest” in their medical staff privileges, therefore requiring a pre-deprivation hearing.

The due process clause of the Fourteenth Amendment binds only government. Therefore, in the medical setting, the due process clause only protects individuals working in government hospitals, including federal, state, county and municipal hospitals. Likewise, when a physician faces a suspension or loss of licensure from a state medical board, the physician has a right to a predeprivation hearing. Physicians working in private hospitals receive their due process rights from other sources.

Health Care Quality Improvement Act of 1986 (HCQIA). The HCQIA applies to all hospitals receiving federal funds. Congress passed the HCQIA primarily to provide qualified immunity for peer review committee members and to specify physicians’ rights at a fair hearing.5 These rights include at least 30 days notice prior to the hearing, a mutually acceptable hearing officer, a right to representation at the hearing, a record of the hearing, the right to call and examine witnesses, the right to present evidence, the right to submit a written statement at the end of the hearing, the right to receive a written communication of the decision including the basis for the decision and the right of appeal. Hospitals that have fair hearing procedures and peer review participants that respect the rights of physicians generally have immunity from liability under HCQIA.6,7,8 This immunity provides protection from countersuits by physicians who challenge the peer review decision.

Other Sources of Physician Due Process Rights. The Joint Commission, an organization that establishes hospital standards, has long required hospital medical staffs to grant due process rights to physicians. This requires physicians to have access to a fair hearing and appellate review when the medical staff makes an adverse decision regarding the medical privileges of a physician. Medical staffs should have autonomy regarding the appointment and reappointment of physicians, as well as disciplinary actions taken against disruptive, impaired or incompetent physicians. While the governing board of the hospital may have the final authority to deny hospital privileges to a physician, the medical staff must make the initial decision after adequate inquiry.

When a hospital or any other corporate interest attempts to violate the rights of physicians, such actions may violate corporate practice of medicine statutes in many states. The laws of many states do not allow corporate interests to manage or control the practice of physicians. These laws allow only physicians to manage or control the practice of medicine.9 The ability to terminate the practice rights of a physician who has no right to a fair hearing represents an extreme form of control and would thereby violate these state laws.
Finally, policies and ethical opinions published by the American Medical Association, the American Academy of Emergency Medicine, and the American College of Emergency Physicians require physicians to have due process rights.10, 11, 12 Therefore, as a strong standard of medical practice in the United States, physicians must have due process rights in all hospitals.

DISCUSSION
Physicians require due process rights at hospitals because of their duty to advocate for the interests of their patients. Emergency physicians have a heightened duty, as they provide care for the most vulnerable patients in American society, including uninsured patients, as well as physically and mentally impaired patients. Patients suffering from an acute catastrophic event may be least able to advocate for their own rights. This duty of advocacy even extends to circumstances where the hospital may oppose such advocacy. Therefore, public policy requires that emergency physicians have due process rights at all hospitals. Those who attempt to deny due process rights to physicians have committed a breach of medical ethics.

Contracts that deny due process rights to emergency physicians are null and void, because they violate public policy. A hospital may assign an exclusive right of practice to an emergency medicine group and may further condition the physician’s credentials to membership in the group. Also, a contract may reasonably expect physicians to resign their medical staff privileges when their group loses their exclusive right to practice emergency medicine at the hospital. However, a physician has a right to a fair hearing upon involuntary termination of medical staff privileges. This right does not depend on whether physicians lose privileges as a result of a disciplinary process or a simple contractual matter.

Likewise, contractual provisions that permit a hospital administrator to directly or indirectly terminate a physician, with or without cause, are null and void. Granting and maintenance of medical staff privileges falls within the authority of the organized medical staff. Most hospital bylaws allow an administrator to file a complaint against a physician, but the decision to terminate the privileges of a physician lies with the medical staff and may require confirmation by the hospital’s governing board. Furthermore, contractual provisions allowing hospital administrators to terminate a physician without the right to a fair hearing violate public policy, and therefore are null and void. Thus, as a matter of policy and medical ethics, AAEM declares that no provision in an emergency medicine contract shall preempt medical staff bylaws.

Finally, no law requires physician groups to extend due process rights to their individual members. However, as a matter of fairness and professional ethics, physicians should have due process rights within their practice group, whether the group functions as a sole proprietorship, partnership, professional corporation or as any other corporate entity. After practicing in a group for six months, physicians should not be terminated without a fair hearing. Emergency physicians have a special need for such protection because their groups have exclusive contracts to staff emergency departments thereby eliminating competition within the hospital and because of a history of abuse and exploitation. These factors make emergency physicians especially vulnerable to unfair practices. Therefore, fairness requires that emergency physician groups extend due process rights to their physician members.

CONCLUSION
As a matter of public policy and medical ethics, all physicians require due process rights in hospitals. Physicians have a duty to advocate for their patients, even when such advocacy requires opposition to hospital interests. Due process rights protect physician autonomy, serve as a mechanism to protect patients, and assure physicians that they will not lose their practice rights for unfair reasons. Physicians denied a fair hearing, or those physicians who disagree with the outcome of a fair hearing, shall have a right of appeal and further redress through the courts. Furthermore, provisions in a contract denying due process rights to physicians do not preempt medical staff bylaws and have no effect because of the public policy protecting the welfare of patients. Finally, emergency medicine practice groups should extend due process rights to their physician members as a matter of fairness. Emergency departments function as society’s safety net, often taking care of patients who have no other access to medical care. To advocate for these patients, emergency physicians require the protection of due process rights as required by law and by medical staff bylaws.

AAEM thanks Linda Kesselring for reviewing this manuscript.

Previously referred to as the Joint Commission on Accreditation of Healthcare Organizations, or JCAHO.